The Madras High Court has
set-aside an order of an Additional Family Court Judge here for arresting a husband for not paying the maintenance amount to the wife in a matrimonial case.
Justice M Venugopal set-aside the order on a criminal revision petiton by the husband recently.
"The learned Second Additional Family Court Judge after marking the presence of the husband and wife, had stated that payment is not made. The wife insisted that arrest may be made and therefore ordered the arrest, which in the considered opinion of this Court, is not correct in the eye of law, Justice Venugopal said.
"Just because the wife had insisted for the arrest of the husband, the same cannot be ordered either as a matter of routine or as a matter of course. Unfortunately the judge on March 17 straight away passed the order", Justice Venugopal said.
There was no indication in the impugned order of the Additional Family Court Judge that the trail court was satisfied that husband, despite having sufficient means, had willfully evaded the payment of arrears of maintenance amount in question.
The Family Court Judge had passed order to pay Rs 22,500 for the wife and two children every month till the disposal of the case.
The wife filed a petition stating that the husband had not obeyed the order.
The counsel for the husband submitted in the High Court that petitioner, a practicing Junior Advocate, met with an accident resulting in head injuries resulting in slow activities which do not enable him to earn more.
The High Court observed that "ordinarily a court of law, before passing an order for arrest and detention of a person concerned, must be satisfied that he, despite having sufficient means has with a malafide intention evades the payment.
It was not a prudent exercise of judicial discretion for a Court of Law to issue a warrant and notice simultaneously.
The Judge directed the Second Additional Family Court to take up the case afresh and pass a reasoned order in a dispassionate manner, that too with an open mind by adhering to the principles of natural justice.
